Lessons from Ireland’s Legal Framework and Practices

Lessons from Ireland’s Legal Framework and Practices Presented by: Mr. Sparman Date: 4 May 2023 Outline - The impact of judicial culture on the use of pre-trial detention • Shared assumptions, interpretations, ways of approaching decision-making - Using the case of Ireland: a low PTD case - The legal framework and aspects of legal practice have historically used alternatives to PTD as a kind of 'default', influencing legal and judicial culture - What might be learned? • Bail: used to refer to 'the' alternative to PTD - conditions placed on liberty The legal framework - A prima facie right to bail (avoiding PTD): not automatic, but an important aspect of the right to liberty and the presumption of innocence - Grounds for refusing bail: • Where it appears likely that the accused will, if admitted to bail, abscond or otherwise evade justice by failing to appear for court to answer the charges; • Where it appears "reasonably probable" that the accused will pervert the course of justice by interfering with evidence or disposing of illegally-acquired property • Where there is a real risk that the accused will commit serious offences if granted bail Grounds for imposing PTD/refusing bail - People (Attorney General) v. O'Callaghan [1966] IR 1 - Emphasized that PTD interferes with a person's presumption of innocence, private life, and ability to instruct lawyers - Permits PTD for risk of not turning up for trial/interference with process - The use of PTD to prevent offending is not permitted by the Irish Constitution - A referendum was passed in 1996 to reverse this decision • Section 2 of the Bail Act 1997 • Serious offences Risk of offending ground Section 2 Bail Act 1997 - Section 2: may refuse • Factors to be considered: seriousness of the offence; previous convictions; drug addiction; length of time until trial - Burglary offences (2015) • Seeking to make it more likely to be placed in PTD for burglary offences The legal/judicial culture and its influences - The legal/judicial culture and its influences • What are the assumptions/ideas/beliefs about how PTD should be governed? • What influences decision-making practice? What is the legal/judicial culture around PTD? - A culture which sees bail as a 'default' or 'norm' - Arguing the person into PTD rather than out of PTD (with exceptions) - • Culture as a barrier to the use of PTD • Culture as a protective factor The influence of the risk of offending ground has been more limited than may have been expected - The constitutional protections for the use of bail have influenced this position - Shared across prosecution and defense lawyers and judges Liberty and the presumption of innocence - It's a serious application by the State to deprive somebody of their liberty and I have to keep in mind number one the presumption of innocence and number two constitutional right to bail and that is the whole system and that's how it works. (J6). - There is obviously a constitutional presumption, from what I've seen that's taken very seriously by the judiciary (P2) - Essentially, it starts with the presumption that somebody will get bail. (J3) - "I think that when you put a strong presumption on liberty, pending trial, you know, it's a valuable right, .... So I mean, there's a very high presumption in favor of bail in Ireland ... I mean, there's a very strong constitutional imperative in Ireland that people shouldn't be a long time in custody pending trial, unless there's a good reason for it". (J4) What are the primary grounds used? - Risk of not turning up for trial - It's really, you know... Someone who won't show up. (PP7) - Well I mean I know you said it's going to take an hour (the interview) but, in truth, I think it can all be done in 30 seconds because I mean the be all and end all of bail in Ireland is the O'Callaghan case. And it's, you know, quoted in criminal courts across the country every day of the week again and again and again and it's taken seriously. (J3). - I think that O'Callaghan is still the main game in town (PP4). - So, I don't know if recent legislative change ... has made that much impact ... I couldn't say if there was any great changes over the years, and I've been doing it for years now. (DP1) What matters? Looking to the past - The Irish approach focuses on likelihood of turning up for trial - To decide on this, the emphasis is on past behavior • Bench warrants - Evidence of prior failure to turn up for trial/court appearance - When a person does not turn up for a court appearance, a judge may issue a warrant for arrest: 'bench warrant' Most important factor: previous record of turning up - Warrant history. Always warrant history. It's the first question asked: how many warrants?... But the first thing is always warrant history. (DP10) - Seriousness of the charge Length of time until trial - Well generally speaking you're looking to the past... if somebody has been charged with offences in the past and has always turned up for his cases in the past or if there's never been any, you know, hint of interference with witnesses or destruction of evidence or anything like that, that's obviously going to weigh. (J3). What matters: the actors - Shared understandings between all the actors - Features of legal practice and legal training in Ireland - A feeling that there is equality between the parties, and that no side is dominant - Prosecution's 'self-restraint': acting as a filter and a buffer to police objections - Consent to release on bail is not uncommon and prosecution participants were comfortable with it • "... I think there's generally a good balance between the parties. Both sides are heard... and there seems to be enough safeguards in relation to it to make it reasonably fair." (DP1) Alternatives: Bail and conditions - The decision is not simply between liberty and detention - Bail conditions: can be intrusive • Financial guarantees • Movement/residence restrictions • Curfew • Mobile phone • 'Sign on' at a police station • Drug/alcohol treatment • No electronic monitoring (yet) • No formal role for the Probation Service/supervision Proportionate conditions? - I have no difficulty saying that some of the conditions are just put there, sometimes there's no real reason for them, you know. (PP1) - [Conditions are imposed] by and large probably in a blanket way... it's almost like a ticking the box exercise when they're putting conditions on the bail bond, I think too often irrelevant conditions are attached to a bail bond. (DP2) - Defense unlikely to object Other aspects - People who do not hold an Irish passport - A feeling that this added to 'flight risk' concerns - This was mitigated if the person had significant ties to the state - Feeling that a person would be less likely to be placed in PTD if an EU national than a non- EU national - Now within Europe that's not such a big deal because of the European Arrest Warrant system. (PP2) What can be learned? - The Irish experience suggests that the risk of offending ground may drive higher PTD rates • Risk versus past behavior - A culture which views liberty as the default acts as a buffer/barrier to the use of PTD - Legal framework plays a role - Equality between the actors also seems to be influential